Re L; Ex parte L [1986] HCA 39

Re L; Ex parte L [1986] HCA 39

A judge’s private communication with a court counsellor who is a potential witness concerning substantive matters in a case, particularly where the report strongly favours one party, gives rise to a reasonable apprehension of bias. Because justice must manifestly be seen to be done, the judge should not continue hearing the custody matter, and the order nisi for prohibition should be made absolute.

Jurisdiction
Australia
Procedural Posture
Application for Writ of Prohibition / Return of Order Nisi
Outcome
Order nisi for prohibition made absolute. Judge prohibited from proceeding further in the Family Court matter. No order as to costs.
Legal Topics
['judicial Impartiality' 'natural Justice' 'reasonable Apprehension of Bias' 'role of Court Counsellors' 'child Custody Procedures']
['family Law' 'judicial Procedure'] ['judicial Impartiality' 'natural Justice' 'reasonable Apprehension of Bias' 'role of Court Counsellors' 'child Custody Procedures']

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Procedural Posture

Application for Writ of Prohibition / Return of Order Nisi

Legal Issues

  1. 1 ["Whether a judge's private communication with a court counsellor in the absence of the parties gives rise to a reasonable apprehension of bias warranting prohibition" 'Whether actions taken by the trial judge subsequently cured any reasonable apprehension of bias' 'The proper role and limits of court counsellors in Family Court proceedings under the Family Law Act']

Ratio Decidendi

A judge’s private communication with a court counsellor who is a potential witness concerning substantive matters in a case, particularly where the report strongly favours one party, gives rise to a reasonable apprehension of bias. Because justice must manifestly be seen to be done, the judge should not continue hearing the custody matter, and the order nisi for prohibition should be made absolute.

Court Disposition

Order nisi for prohibition made absolute. Judge prohibited from proceeding further in the Family Court matter. No order as to costs.

Orders

  • ['Order nisi for a writ of prohibition made absolute' 'The Honourable Margaret Ann Renaud prohibited from proceeding further in matter No. C. 746 of 1984 in the Family Court of Australia' 'No order as to costs']